Liberal Law Professor Says Kagan Should Recuse
she views herself as a judge of law who is obligated to approach legal
issues objectively and open-mindedly without regard to partisan
political outcomes, she ought to step aside.” - Professor Eric Segal
By Dell Hill via Doug Ross
may come as a shock to some of you, but not all Democrats are flaming,
left-wing socialists. In fact, the majority of Democrats are more
politically comfortable in the “moderate” category - the so-called
“Clinton Democrats”. I happen to know several such Democrats and very
privately they’ll tell you that they don’t agree with everything the
far-left espouses, nor do they toe the party line on every important
issue of the day. Very similar, in fact, to the divide that separates
TEA party followers with the RINO establishment of the Republican party.
It could easily be said that we have four political parties -
socialist Democrats, Centrist Democrats, RINOs and Conservatives.
in that vein we find Professor Eric Segal and his opinion regarding
Supreme Court Justice Elena Kagan and the matter of Obamacare being
argued before the high court.
“Professor Eric Segal
is a widely published constitutional attorney who is a self-professed
liberal. Therefore, when the subject of Elena Kagan's recusal is seen
by most Democrats as a partisan issue -- rather than simply an issue of
obvious, judicial integrity -- his Slate opinion piece ("A Liberal’s Lament on Kagan and Health Care") represents a breath of fresh air.
Kagan is a loyal Democrat who owes her Supreme Court appointment to
President Barack Obama.* She is poised to review the constitutionality
of Obama’s health care statute, which, if invalidated, might do serious
damage to his re-election campaign as well as the Democratic Party.
Even though it would be a hard decision to make, Elena Kagan should
recuse herself from hearing challenges to the act.
Would The One On The Left Vote Against The One On The Right?
far it appears that only Republicans and conservatives want Kagan to
recuse herself from hearing the case, while liberals and Democrats take
the opposing view. I have been a liberal constitutional law professor
for more than 20 years, and a loyal Democrat. I believe the Affordable
Care Act is constitutional... That said, I believe that as a matter of
both principle and law, Kagan should not hear the case.
many have pointed out, there are legitimate arguments that these rules
point to recusal. Was Kagan a “counsel” or “adviser” on this issue? We
know that she was on an e-mail exchange between her top deputy, Neal
Katyal, and Associate Attorney General Tom Perrelli, about a meeting to
discuss the litigation strategy for the ACA litigation, and lawyers in
her office would be present. We also know she attended at least one
meeting where the litigation was discussed... We don’t know how fully
Kagan was involved because the White House (perhaps for legitimate
reasons unrelated to this controversy) has not released all of the
relevant emails about the matter...
also know that Kagan wrote an e-mail to Laurence Tribe, a famous
Harvard constitutional law professor who was also working for the
administration at the time the law passed, in which she said, “I hear
they have the votes, Larry!! Simply amazing.” The email's subject line
was "fingers and toes crossed today!"
served as the solicitor general of the United States during the time
that the ACA was furiously debated in Congress, discussed in town halls
across the country, and enacted... [and] We know she celebrated the
passage of the law.
Supreme Court is increasingly seen as a partisan political institution
making political decisions instead of a true court deciding cases under
the law. Justice Kagan has a golden moment to display that at least one
Supreme Court justice has integrity and character that exceed her party
loyalty and political past. If she sees herself as a political
official who, because of the office she occupies, gets to cast an
important vote on an issue that may decide an election, she should stay
on the case. But, if she views herself as a judge of law who is
obligated to approach legal issues objectively and open-mindedly without
regard to partisan political outcomes, she ought to step aside.
Nothing less than the integrity of the Supreme Court is at stake.
you, professor, for demonstrating that at least one Democrat is capable
of publicly advocating for an intellectually honest course of action
for Justice Kagan.”
think it goes without saying; this blog agrees with Professor Segal’s
synopsis and conclusion. And that’s exactly the opinion that most
independent legal experts would reach, given the facts as presented.
Justice Kagan knows this. Barack Obama (the constitutional law
professor!) knows this. Every lawyer serving in congress - and there
are dozens of them - knows this.
most observers feel the high court - even with Kagan voting - will
overturn Obamacare on a 5-4 ruling - split along ideological lines.
Without Kagan’s vote, the result would be 5-3.
arguments on the case have been scheduled for early next year and a
decision is predicted for as early as late June or early July.
timing guarantees the issue will have a profound effect on the
presidential election in November. Should SCOTUS find Obamacare
Constitutional, Republicans would have to retain control of the House
and retake both the White House and the Senate in order to repeal this
very unpopular law.
Control of the Senate, repeal legislation would never pass
congressional muster, so in that regard, Obama is currently “sitting
pretty”. If Obama were to fail in his re-election bid, but the
Democrats retain control of the Senate, repeal legislation would never
reach the new president’s desk because Democrats would block it by
filibuster in the Senate!
of which makes the Supreme Court decision - combined with the
presidential election - the most critical period in the history of the
Conservatives, the best case scenario would be for Obamacare to be
found unconstitutional (which would eliminate the need for repeal
legislation) and for the election of a new president in November. The
political “shoe” would then be “on the other foot” and Democrats would
find themselves in the very same position Republicans are right now.